national capacity, established the present Constitution. It is remarkable that, in establishing it, the people exercised their own rights and their own proper sovereignty; and, conscious of the plenitude of it, they declared with becoming dignity, 'We the people of the United States do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State constitutions should be made to conform." 1 - § 51. Conceding, then, that we are a nation, the answer to the question with which we started some pages back Where resides the sovereignty in the United States? is ready to our hand. It resides, and must reside, in the nation, considered as a political society or body corporate. Back of all the States and of all forms of government for either the States or the Union, we are to conceive of the NATION, a political body, one and indivisible, made up of the citizens of the United States, without distinction of age, sex, color, or condition in life. In this vast body, as a corporate unit, dwells the ultimate power denominated sovereignty. It is this body which declared itself, by the Continental Congress, and under the name of the "United Colonies," to be free and independent: "We, therefore, the representatives of the United States of America, . . . do, in the name and by the authority of the good people of these Colonies, declare that these United Colonies are .. free and independent States," -independent, that is, of the crown of Great Britain, not of each other. This body it is which formed the government of the Confederation, granting to it, indeed, few powers, and still leaving many and important ones to the peoples of the several States; and it is this which afterwards, as we have seen, "ordained and established" the present Constitution, parcelling out anew and in different measure, the powers it saw fit to grant at all; giving to the government of the Union broad national powers, making its laws and Constitution supreme, and leaving to the peoples of the States other powers for local purposes, but stamping them with the mark of inferiority, as the parts are severally inferior to the whole. § 52. If I am right in lodging the sovereign power in the 1 See further on this subject, Story's Com. on Const §§ 210-216. nation, the perplexing question of allegiance is easily determined. Allegiance (alligo) is for the citizen, with respect to the state or sovereign society, what religion (religo) is for man, with respect to God, a dutiful recognition of the bond which connects them, in their relations as subject and sovereign. Allegiance relates to a temporal, as religion does to a spiritual or Divine, sovereign. Accordingly, as it would be sacrilege for a man to recognize as his spiritual sovereign or to acknowledge the bond implied in the term religion as uniting him with any being but God, so it would be an act of treason, in morals if not in law, for a citizen to recognize as entitled to sovereign rights — that is, to render allegiance to any person or body, but the true sovereign, the nation. - But although the nation is the only real sovereign, the States are often, by a misuse of language, called sovereign. This arises partly from reasoning upon the supposed condition of the original colonies at the moment of their separation from the mother country, and still more from confusion of ideas in regard to the relations of the States to the people of the Union, as established by the Articles of Confederation. Even if it were conceded that the original thirteen colonies were sovereign communities at the time of their separation from England, and in some way managed to retain their sovereign powers after joining the Union, the same would not be true of the twentyfive or more Territories, or inchoate States, which have been admitted, into the Union since 1789 With the possible exception of Vermont, not one of these was a sovereign community before it became a State, and it will not be claimed that they became such by virtue of the act of admission. And yet they possess, in the Union, to its full extent, every power belonging to the original thirteen States. Nevertheless, it is trueand here is the source of the confusion of ideas referred to that the States have always, under the Federal and State Constitutions, been entrusted with the exercise of powers of gov ernment within their respective boundaries. These powers are sovereign powers. But, as we have seen, not every person or body of persons permitted to exercise sovereign powers is a sovereign, else were the governor, each legislator, each functionary of the State, a sovereign, since each, by virtue of the Con stitution, exercises some sovereign powers. It is unfortunate for the interests of constitutional government that our courts, and many of our writers on constitutional law, have not always distinguished this permissive exercise from the original possession of sovereign powers, and that they have spoken of the States accordingly as sovereign communities, a character which can be attributed neither to the States, whether in the capacity of peoples or of governments, nor to the general government of the Union itself. § 53. As allegiance is due only to the sovereign, there can be no such thing in law as allegiance to one's State. The same confusion of ideas, however, referred to in the last section, has led to the conception of State allegiance, and from it have resulted, in the past history of the Union, the most disastrous consequences. The war of secession was begun and prosecuted in the main under the inspiration of that dogma, and with a view to carry it into practical effect. Some writers, recognizing the impropriety of applying the term allegiance to the obedience one owes to the government of his State, have denominated it a "qualified allegiance," a thing as absurd as a qualified om nipotence, unless by it be meant an allegiance which is not real but seeming; that is, an act of obedience which would be one of allegiance were the body to which it is paid a sovereign body. Thus, in a late case decided by the Supreme Court of the United States, Justice Grier said: "Under the very peculiar Constitution of this government, although the citizens owe supreme allegiance to the federal government, they owe also a qualified allegiance to the State in which they are domiciled." 2 Treason is a crime against sovereignty, a violation of one's allegiance. Hence, there is really no such thing as treason against any political body in the Union but the United States. If a State, by its courts, punishes treason, it must be not as treason against itself, but as treason against the Union; and, in this view, the propriety of that State legislation which defines treason against the State and affixes to it particular penalties, is doubtful. It would seem that the only principle on which such legislation can be sustained is, that a State has a right, under its general power of regulating its own internal police, to punish acts dangerous to See ante, § 22. 2 Claimants of the Schooner Brilliant, &c., Appellants, v. The United States, Am. Law Register, Vol. II. (new series) 334. the peace and safety of its citizens, giving to them such names as it pleases, although the same acts may constitute treason against the United States, and as such be punishable under the laws of the latter. On that principle, State laws have been sustained by the Supreme Court of the United States, affixing penalties to the act of counterfeiting the coin of the United States and other offences against the laws of the Union; the same acts being declared, upon different grounds, having respect to the interests of each, to be crimes against both jurisdictions.1 § 54. 2. I come now to consider the second branch of the question stated, namely, How does sovereignty inhere in the people of the United States? To this question two answers may be given: (a). That sovereignty inheres in the people considered simply that is, as a unit, without conditions, or State or other internal discriminations. (b). That it inheres in the people only as discriminated into and acting in groups by States. To determine which of these answers is the correct one, in my judgment, we need but consider what is involved in the conception of sovereignty inhering in a society under conditions, as where the sovereign body is regarded as capable of acting as such only when discriminated into groups, by States, or otherwise. It is evident, that any particular mode of existence exhibited by sovereignty, except that of inhering in the political body as a unit, must be the result of voluntary regulation by the sover 1 See Fox v. State of Ohio, 5 How. 432. Also, Moore v. The People of Illinois, 14 How. R 13. Upon the whole doctrine of allegiance, in relation to both the States and the United States, see The State ex rel. M'Cready v. Hunt, and The State ex rel. M'Daniel v. M'Meekin, (the so-called "allegiance cases,") 2 Hill's S. C. R. 1-282. These cases arose in South Carolina, in 1834, in connection with the nullification ordinances of the convention of that State, and involved the whole subject of sovereignty, allegiance, the relation of the States to the Union, and kindred questions. The majority of the court held, that the oath of allegiance prescribed to officers of the militia by the Act of 1833, "to provide for the military organization of this State," was "unconstitutional and void." No constitutional question has ever been discussed with greater ability and learning in the United States, than were those raised in these cases. They were argued for the relators by Mr. Grimke and Mr. Petigru, each clarum et venerabile nomen. eign itself; be, in other words, a self-imposed limitation, enforcible only by moral sanctions. For, to suppose that sovereignty so inheres in the political body that it can manifest itself only through some particular instrument, or in some particular mode, is to rob the sovereign of its essential attribute, that of perfect freedom, or the power of absolute self-determination. The fact that a particular instrument or mode has become established, may furnish a weighty moral reason why it should be used or followed; but to suppose a power anywhere existing of compelling the employment of either, would be to subject the sovereign to some extrinsic human superior, that is, to make, not it, but another, the real sovereign. § 55. Again: the terms modes and instruments, when used in relation to the manifestation of sovereignty, merely indicate how sovereignty is exercised; refer, in short, to systems of government established by the sovereign, or conceived to be within its competence to establish. To contend, therefore, that sovereignty so exists in the sovereign body that it is exercisible only in some particular mode, or through some particular instrument, is to say, that when government has been once ordained by sovereign authority, the latter ceases, with respect to that government, to be any longer sovereign; in other words, that, in the act of creation, sovereignty leaves the creator, and takes up its abode with the creature. The error upon which such an hypothesis rests, is that of taking the secondary forms into which the sovereign body resolves itself as being severally the primary, substantial, and necessary form of sovereignty itself. On the contrary, that only can be the ultimate and essential form, which precedes the estab lishment and survives the dissolution of all those special adjustments needed to bring into regular exercise the powers of sovereignty, which constitute government. § 56. To a full comprehension of the analysis exhibited in the last two sections, it is necessary to consider further, with reference to some particular form of government, as that of the United States, what is signified by the terms, the exercise of sov ereign powers. By the exercise of sovereign powers is meant either, 1. The regular, which, historically considered, is commonly, also, in constitutional governments, the actual exercise of it; and, 2. |